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How do we build greater responsiveness into our legal systems?

Ben Mylius and Michelle Maloney

Preliminaries

• format: facilitated discussion– some introductory ideas– brainstorming, discussion, exploration– sparking thought and questions

• importance of developing a positive vision to underpin and guide practical change

• intellectual, imaginative and creative capacities as assets to the Earth Jurisprudence movement

Guiding questions for discussion

• What does a more adaptable legal system look like? – What are its characteristics?

• At what level/s of our current legal systems does change need to occur?– Individual statutes and regulations? Regulatory

frameworks? Institutional design and powers? Values? Jurisprudence? All of the above?

• Where do we look for models and resources in other disciplines, or ecocentric exceptions in our own, that can help us design these adaptable legal systems?

1. What does ‘adaptable’ look like?

Adaptability/resilience:‘the capacity of a system to absorb disturbance

and reorganise while undergoing change so as to still retain essentially the same function, structure, identity and feedback’

- Carl Folke et al, Adaptive Governance of Social-Ecological Systems (2005) 30 Annual Review of Environmental Resources 441, 443

(our emphasis)

Discussion

• What do we mean by ‘adaptable’?– to what?– in what way?– to what end?

• Different scenarios: – an unexpected crisis situation emerges (eg: Deep Water

Horizon).• How does law swing into action?

– a long-term crisis is developing (eg: the Murray Darling). • How does law swing into action here? • Does this involve different principles to crisis engagement?

2. Where are we adaptable?

(building on work by Alessandro Pelizzon, Liz Rivers, et al)

Principles and approaches• Systems thinking: reshape systems, not just symptoms• Smart regulation: look beyond the discipline of law, use multiple instruments of different

types simultaneously• Behavioural sophistication: change behaviour through law, awareness raising, and values• Streamlining and cost reduction: simplify regulatory schemes and market arrangements

to reduce inefficiency• Collaborative governance: private, public and NGO shareholders pursuing common goals• Empowering private initiatives: give NGOS and citizens the ability to act on behalf of

ecosystems• Risk management: develop a better understanding of risk; expand the range of risk

approaches; address risk arising from laws themselves• Scientific theorising: articulate the theories that underlie interventions, and use evidence

to evaluate the implementation of those theories– adapted from Paul Martin and Neil Gunningham, Leading reform of natural resource management

law: Core principles (2011) 28 EPLJ 137, 138-9

3. Where do we find inspiration?

What other disciplines have models, resources, approaches? - Who’s doing this work?- What work is going on in law already?- How do we collaborate with those disciplines?- How do we incorporate their insights into law?

Where are the ‘seeds’ of ecocentric or adaptive regulation in existing law and legal systems?- ‘trigger’ mechanisms?- sunset clauses?- reversing burdens of proof? - other creative ideas!

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